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Chirco v. City of Long Beach

Supreme Court of New York, Second Department

May 22, 2013

Dino Alberto Chirco, etc, et al., appellants,
v.
City of Long Beach, respondent. Index No. 4551/09

Morici & Morici, LLP, Garden City, N.Y. (William B. Baier of counsel), for appellants.

Corey E. Klein, Corporation Counsel, Long Beach, N.Y. (Charles M. Geiger of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P. CHERYL E. CHAMBERS L. PRISCILLA HALL SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Sher, J.), entered November 19, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 11, 2008, Roberta Chirco was walking on the boardwalk in the City of Long Beach when her foot allegedly became caught in a gap between the wooden slats and she fell, sustaining injuries. Chirco thereafter commenced this action against the City to recover damages for personal injuries. The City moved for summary judgment dismissing the complaint on the ground that it did not receive prior written notice of the alleged defect as required by section 256A(1) of the Charter of the City of Long Beach (hereinafter section 256A[1]). The Supreme Court granted the motion, and Chirco appealed. After perfecting the appeal, Chirco died, and she has been substituted on this appeal by the executors of her estate (hereinafter the appellants).

Pursuant to section 256A(1), no civil action may be maintained against the City to recover damages for personal injuries caused by a dangerous condition on the subject boardwalk unless prior written notice of the condition has been filed in the office of the Commissioner of Public Works of the City. Prior written notice statutes are strictly construed (see Gorman v Town of Huntington, 12 N.Y.3d 275, 279; Poirier v City of Schenectady, 85 N.Y.2d 310, 313), and only two exceptions are recognized, "namely, where the locality created the defect or hazard through an affirmative act of negligence and where a special use confers a special benefit upon the locality" (Amabile v City of Buffalo, 93 N.Y.2d 471, 474, [citation and internal quotation marks omitted]; see Abano v Suffolk County Community Coll., 66 A.D.3d 719).

Here, the complaint did not allege one of the recognized exceptions. Thus, the City established its prima facie entitlement to judgment as a matter of law by proffering the affidavit of its Commissioner of Public Works, in which he asserted that he had searched the City's prior written notice record book and had found no records indicating that the City had received prior written notice of the alleged defective condition at the location of the boardwalk identified by Chirco (see Magee v Town of Brookhaven, 95 A.D.3d 1179, 1180; Politis v Town of Islip, 82 A.D.3d 1191; McCarthy v City of White Plains, 54 A.D.3d 828, 829; cf. Carlucci v Village of Scarsdale, 104 A.D.3d 797).

In opposition, Chirco failed to raise a triable issue of fact as to whether the City received prior written notice of the alleged dangerous condition, or whether either of the two exceptions to the prior written notice rule applied (see Yarborough v City of New York, 10 N.Y.3d 726, 728; Amabile v City of Buffalo, 93 N.Y.2d at 474; Oliveri v Village of Greenport, 93 A.D.3d 773, 774). Contrary to the appellants' contention, the evidence regarding six previous notices of claim failed to raise a triable issue as to whether the City had prior written notice of the alleged dangerous condition which caused Chirco to fall, because those notices of claim involved conditions on different portions of the boardwalk some distance from the alleged dangerous condition which caused Chirco to fall (see Arcabascio v City of New York, 91 A.D.3d 684, 684-685; Farrago v Great Atl. & Pac. Tea Co., Inc., 17 A.D.3d 631, 633). The records of the City's Police Department and Beach Maintenance Department did not raise a triable issue, since section 256A(1) requires the filing of written notice with the City's Commissioner of Public Works (see Gorman v Town of Huntington, 12 N.Y.3d at 279; Kiszenik v Town of Huntington, 70 A.D.3d 1007, 1008). Moreover, the appellants' contention that the City had actual or constructive notice of a recurring condition is without merit. Where, as here, a municipality has enacted a prior written notice statute, "[c]onstructive notice of a condition is insufficient to satisfy the requirement of prior written notice" (Magee v Town of Brookhaven, 95 A.D.3d at 1180; see Amabile v City of Buffalo, 93 N.Y.2d at 475-476), nor does "actual notice... obviate the need to comply with the prior written notice requirement" (Granderson v City of White Plains, 29 A.D.3d 739, 740).

Accordingly, the Supreme Court properly determined that the City established its prima facie entitlement to judgment as a matter of law dismissing the complaint, and that Chirco failed to raise a triable issue sufficient to defeat the motion (see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).

ANGIOLILLO, J.P., CHAMBERS, HALL and ROMAN, JJ., concur.


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